The Hamilton County Law Library provides legal research services and resources to the elected officials, judges, lawyers, and the public of Cincinnati and Hamilton County, Ohio.

Friday, November 24, 2006

Medical Monitoring for Lung Cancer

Lung cancer and heart disease have been noted as major causes of death in this country for a number of years now. Early detection of symptoms offers the best chances of survival for both, but in the case of lung cancer it’s about the only. When diagnosed in its early stages it’s often curable, but when not found until later stages prospects for successful treatment are dim.

A procedure referred to as “Low Dose CT Scanning” of the chest is a safe, proven technique providing an effective means of discovering growths or tumors at a much earlier stage than is afforded by more traditional procedures such as chest x-rays or sputum cytology. The problem is that they are relatively expensive and not covered by most medical insurances.

District of Columbia’s district court now has a case before it in which the plaintiffs – three long-term, pack-a-day smokers -- are seeking just that treatment as their only compensation in a class-action against cigarette manufacturer Philip Morris.

A Law.com article, last Tuesday, relates that lawsuits seeking medical monitoring for smokers have not been successful in the past, being rejected by the majority of trial & appellate courts since the first such action was filed in New Orleans in 1994.

“Courts have long struggled with the question of whether a compensable tort has occurred when claimants have no present physical injury, rather, being exposed to substances that might, or might not, cause diseases in the future,” a second article said, and a surprising few state supreme courts have ruled on whether to recognize “medical monitoring.” Five states have expressly adopted the concept, but another five – Kentucky, for one – expressly reject it.

Part of the problem are “individual issues” seemingly common to such class-actions. The Ohio Supreme Court, for example, affirmed, two years ago, a refusal to certify medical monitoring in a workers’ compensation case on exposure to a toxic substance because individual issues predominated, and the class was not “cohesive” when spanned 46 years, multiple contractors, and multiple locations within a plant. (See Wilson v. Brush Wellman, Inc.)